Obama vs. Cheney: Jack Goldsmith is Right
Goldsmith points out that in eleven different ways, Obama has carried out existing Bush policies that have enraged so many people. Goldsmith writes: "The Obama policies also reflect the fact that the Bush policies were woven into the fabric of the national security architecture in ways that were hard if not impossible to unravel." The Bush and Obama policies are close, he reasons, because they reflect "longstanding executive branch positions." Various administrations have detained enemy forces during war without charges; have used military commissions for war criminals, and refused habeas corpus review to aliens detained outside the United States.
In other writing, cited in his Contentions blog by Peter Wehner, Goldsmith cites the standard set by a man Obama has often been compared to, Abraham Lincoln: "In response to the secession crisis that began when Confederate forces fired on Fort Sumter, Lincoln raised armies and borrowed money on the credit of the United States, both powers that the Constitution gave to Congress; he suspended the writ of habeas corpus in many places even though most constitutional scholars, then and now, believed that only Congress could do this; he imposed a blockade on the South without specific congressional approval; he imprisoned thousands of southern sympathizers and war agitators without any charge or due process; and he ignored a judicial order from the Chief Justice of the Supreme Court to release a prisoner detained illegally."
Lincoln acted because he felt it necessary to save our nation, despite his bold decision to ignore Constitutional restraints. Wehner sarcastically remarks that perhaps Obama "can therefore devote an entire speech to what he must consider to be the awful and unforgivable assault on the Constitution by Lincoln, his purported hero." Of course, many people will argue that today's situation is not comparable to the situation faced by Lincoln the moment of Southern secession and the collapse of our Union. Undoubtedly, however, Obama comes to the issue after years of safety, while the Bush administration had to act decisively after a major terrorist attack the likes of which America had never seen since the Japanese surprise attack on Pearl Harbor.
Speaking as a historian, I agree with Wehner's argument that one must put Bush policies in historical context. Wehener does precisely that: "And by historical standards, the Bush Administration acted in ways that were far more respectful of the Constitution and the rules of war than virtually any other wartime President's. Justice John Roberts, for example, wrote in his dissent in Boumediene v. Bush that the Bush Administration had put in place "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.'"
So, despite President Obama's claim that he has taken "a new direction from the last eight years," he has only made some cosmetic changes that amount to a distinction without a difference, in programs like those discussed in the Goldsmith article. That is why the ACLU and the Left, that wants a Truth and Reconciliation Commission and/or trials of lawyers, interrogators and Bush Administration officials, are going to not forgive or accept the President's clever appearance of a middle-road approach to fighting the terrorists.
Obama's genius is that of being able to convince the public that he has made a vast departure, when in fact he has made slight modifications and is continuing the Bush policy. As Goldsmith says, it's all in the packaging.